Intellectual Property 101
By Jeffrey E. Jacobson & Justin M. Jacobson
Intellectual Property Law is a fancy term that has been much used in the last decade. Simply stated it includes the laws of patents, trademarks, copyrights and unfair competition.
Intellectual Property is concerned with the protection and exploitation of creations. Copyrights cover the expression of ideas in a fixed, fanciful and creative manner. Once the expression of the idea is fixed in a tangible form or medium of expression, a copyright is exists in the work. The registration of the Copyright enables the owner to enjoy the full benefits provided by the law. That was not always the case; but, it has been for nearly half a century. The owner of a copyright is often indicated on a compact disc, DVD, book or magazine with the symbol © follow by the year and then the proprietor of the work.
Trademarks and servicemarks represent the owners of symbols, logos, words or other means of identifying the originator of goods or services. The purpose of this law is to identify the providers of goods and services to the public. In that sense, it is a consumer law, as it protects the public ensuring they are aware of the origin and quality of goods and services. It seems obvious that a trademark indicates the originator of goods and the servicemark indicated the provider of services.
Once someone does business they usually obtain common law rights to the mark. The geographic area that they work in may limit these rights as well as anyone who had rights before they entered into commerce. There are state and federal registrations of marks. Federal registration of a mark requires that the mark is used in interstate commerce. Rights to a mark are limited by pre-existing users. If someone has already adopted the mark you may be liable for infringement when you enter into business, despite a lack of knowledge on your part. This is why it is important to have a search conducted as soon as possible. It is crucial to conduct searches in order to properly plan for the brand that your business is going to develop and market. Marks and brands can represent a significant investment for a business, so a search is a prudent move.
There are also now “intent to use” Federal mark applications. Although rights to a mark are generally obtained through use, an application can be filed after clearance by a search before actual use in commerce. This enables someone to “reserve” the mark and gain precedence over subsequent adopters.
Patents are a very complex area of intellectual property law. There are three basic patents: a utility patent, a design patent, and a plant patent. After a search is conducted for prior registrations, an application can be made with the U.S. Patent & Trademark Office so that you may obtain a “patent pending” designation. Plant patents cover new flower horticultural discoveries, a utility patent is an invention and a design patent is a three dimensional work with protectable ornamental features.
This is an extreme simplification of a very complex field. Be sure to consult a knowledgeable attorney in these fields before taking action.
(c) 2014, 2015 The Jacobson Firm, P.C.